Orissa High Court
Prafulla Behera @ Prafulla vs Ananda Behera & Others on 1 March, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.471 of 2023
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment and decree dated 18.08.2023 &
29.08.2023 respectively, passed by the learned Additional District Judge,
Nimapara in R.F.A. No.101/16 of 2016-11, confirming the judgment and
decree dated 20.01.2011 & 02.02.2011 respectively passed by the learned
Civil Judge (Senior Division), Nimapara in Title Suit No.48 of 2002.
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Prafulla Behera @ Prafulla .... Appellants
Kumar Behera & Another
-versus-
Ananda Behera & Others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- M/s. Suvashish Pattanaik,
B. Baivab, S. P Biswal
Advocates
For Respondents - -------
CORAM:
MR. JUSTICE D.DASH
DATE OF HEARING :23.02.2024 :: DATE OF JUDGMENT:01.03.2024
D.Dash,J. The Appellants, by filing this Appeal, under Section 100 of
Code of Civil Procedure, 1908 (for short, 'the Code'), have assailed the
judgment and decree dated 18.08.2023 & 29.08.2023 respectively, passed by
the learned Additional District Judge, Nimapara in R.F.A. No.101/16 of
2016-11.
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The Appellants as the Plaintiffs had filed the suit (T.S No.48 of 2002)
for partition of the suit schedule property with the alternative prayer of
demarcation of the same as per their entitlement.
The suit having been dismissed, these Appellants as the unsuccessful
Plaintiffs had carried the Appeal under section 96 of the Code, which has
also been dismissed. Hence the present Second Appeal is at the instance of
the Appellants, who have remained unsuccessful before the trial court as well
as the First Appellate Court.
2. For the sake of convenience, in order to avoid confusion and bring in
clarity, the parties hereinafter have been referred to, as they have been
arraigned in the Suit.
3. Plaintiff's case is that Laxman and Madhab were two brothers.
Laxman died leaving behind his son Bhobani and Madhab died leaving
behind his son Lokanath. Bhobani died leaving behind his son Kashi, who
was survived by his son Kashu and daughter Keluni. These Plaintiffs,
namely, Prafulla and Ramesh are the sons of Panchu.
The suit land is under Plot No.1755 measuring an area of Ac0.54
decimals which stood recorded in the name of Bhobani and Lokanath under
sabik khta no.744. It is stated that there was no partition between the Bhobani
and Lokanath and both are entitled to Ac0.27 decimal each. It is further
stated that Lokanath alienated Ac0.13 ½ decimal out of that Ac0.27 decimal
to Defendant No.1 and the ancestors of Defendant No.3 to 7 and Defendant
No.8 and 9 by registered sale deed of the year 1976. The rest half was
alienated by Lokanath in favour of the Plaintiffs. In the Hal settlement, the
sabik Plot No.755 was divided into three plots such as 1732, 1733 and 1734.
Area of land under above three plots remained as Ac 0.15 decimal for Plot
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No.1732 and 1733 whereas Ac0.27 decimal for Plot No.1734. It is stated that
the purchased land of the Defendants has been recorded under Hal Plot
No.1732 whereas Hal Plot No.1733 & 1734 have been recorded in the name
of the Plaintiffs. The Defendant though had purchased Ac 0.13 ½ decimal,
they have been recorded with the land measuring Ac0.15 decimal. It is thus
stated that the Plaintiffs having purchased Ac0.13 ½ decimal, their total area
comes to Ac 0.40 ½ decimal which actually correspond to Plot No.1733, an
area of Ac 0.15 decimal and 1734 an area of Ac 0.24 decimal with a
reduction of the area from Ac0.40 ½ decimal to Ac 0.39 decimal. The
Plaintiff stated that the consolidation record of rights and map do not reflect
the correct position as they are entitled to ¾th share and Defendants are
entitled to 1/4th share in that sabik Plot No.1755. Since the Defendants did
not agree for partition or in the alternative for demarcation, the suit has come
to be filed.
4. The Defendant No.1, 3, 8 and 9 in their written statement stated that
there was partition between Bhobani and Lokanath and that northern half of
sabik Plot No. 1755 had fallen in the share of Lokanath. It is stated that
Lokanath sold Ac 0.13 ½ decimal to Defendants and delivered possession in
respect of Ac 0.15 decimals. They assert that this area was recorded in their
names under Plot No.1732 measuring an area of Ac 0.15 decimal. Panchu,
the father of Plaintiff No.2 & 3 has also purchased land of Ac 0.13 ½ decimal
from sabik Plot No.1755 but he has been recorded with land of Ac 0.15
decimal under Plot No.1733 in the consolidation record. Their case is that the
rest land of sabik Plot No.1755 was recorded in the name of Keluni and
Panchu purchased Ac 0.24 decimal from her. Keluni, who is the only
daughter of Kashi never raised any objection before the Consolidation
Authority. According to them, Panchu is not the son of Kashi. The Record of
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Right in the consolidation having been published in the year 1987, no
objection had ever been raised till the suit and these errors and defects in the
said recording for the first time are being pointed out in the suit instituted on
10.04.2002.
5. On the above rival pleadings, the Trial Court has framed as many as
six issues. Having gone through the evidence both oral and documentary let
in by the parties, it has found that the Record of Rights relating to the suit
lands having been finally published in the Consolidation Operation in the
year 1987 and that has never been challenged by any of the parties, in any of
the forums as available under the Odisha Consolidation of Holdings and
Prevention of Fragmentation of Land Act, 1972, (for short, 'OCH & PFL
Act'), the bar under section 14 of the OCH & PFL Act stands for
entertainment of the suit. When the cause of action for the suit is stated to
have arisen after the closure of the consolidation operation and no material
has been placed by the Plaintiffs that the authorities have violated any of the
provisions of the Act nor it has been proved by leading clear, cogent and
acceptable evidence that any fraud have been committed by the defendants or
in the hands of the Consolidation Authorities, the Trial Court has taken a
view that the suit is not maintainable.
6. The unsuccessful Plaintiffs having carried the First Appeal have also
failed in that move.
7. Mr. Suvashish Pattanaik, learned counsel for the Appellants submitted
that when the Defendants have admitted that they are in excess possession of
the land of the extent of Ac 0.01 ½ decimal as against their purchase of Ac
0.013 ½ decimal, the Courts below are not right in dismissing the suit.
According to him, under the circumstances, the view of the Courts below that
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the suit filed by the Plaintiffs seeking the reliefs therein is not maintainable in
view of the final publication of the Record of Right in the Consolidation
Operation in the year 1987 is unsustainable. He, therefore urged for
admission of this Appeal to answer the above as the substantial question of
law.
8. Keeping in view the submissions made, I have carefully read the
judgments passed by the Courts below.
9. Admittedly, the Plaintiffs have not exercised their rights available
under the OCH & PFL Act by raising any objection about such recording in
the Record of Right as to the extent of land and the correctness of the Maps.
So, the rights of the parties are found to have been finally worked out before
the Consolidation Authorities. In that view of the matter, the provision
contained in section 14 of the Act clearly stands as the bar for entertainment
of any such dispute now after lapse of more than 14 years. There is no
allegation of fraud to have been committed in preparation of the Record of
Right in the Consolidation Operation nor the map. It has been stated during
hearing of the First Appeal the Plaintiffs placed to have filed an application
under section 37 (1) of the OCH & PFL Act before the Commissioner,
Consolidation and nothing more is stated as to the result of the same. This
itself shows that the Plaintiffs being conscious of the fact that the suit for the
reliefs claimed being not maintainable have approached the Revisional
Forum for exercise of its power under section 37(1) of the OCH & PFL Act.
10. The Record of Right and the Map in the consolidation operation
having been finally published more than 14 years prior to institution of the
suit, the Courts below are found to have taken the correct view in holding
the suit to be not maintainable.
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The submission of the learned Counsel for the Appellants that there
arises the substantial question of law, as pointed out above, meriting
admission of this Appeal fails.
11. In the result the Appeal stands dismissed. No order as to cost.
(D. Dash),
Judge.
Gitanjali
Designation: Junior Stenographer
